IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR.JUSTICE ARAVIND KUMAR WRIT PETITION NO.12739/2019(GM-RES) BETWEEN:
Sri R.Ramesh S/o Sri.r.Raju, Aged about 46 years, M/s Sai Saree Centre, No.159/1, 1st Main, 1st Cross, Bank Colony, Chikkallasandra, Bengaluru-560 061.
(By Sri.Manjunath H, Advocate) AND:
Sri Venkatesh Kaushik, S/o Late Sri Kaushik, Aged about 50 years, R/at No.45, ‘Vaishnavi’, 2nd Main, 6th Cross, Sarvabhoumanagar, Chikkallasandra, Bengaluru-560 061.
(By Sri.S.Rachaiah, Advocate) …. Petitioner … Respondent This Writ petition is filed under Articles 226 and 227 of the Constitution of India read with Section 482 of CRPC, praying to quash the order dated 20.12.2019 passed by the LXVI Additional City Civil & Sessions Judge, Bengaluru in Crl.R.P.No.963/2018, as per Annexure-A and order dated 01.12.2018 passed by the 16th ACMM, Bengaluru in C.C.No.27506/2017, as per Annexure-B;
This Writ Petition coming on for Preliminary Hearing this day, the Court made the following:
ORDER Heard Sri. H.M.Manjunath, learned counsel for petitioner. Perused the records.
2. Petitioner is facing prosecution for the alleged offence punishable under Section 138 of N.I.Act, initiated by respondent herein by filing a compliant under Section 200 of Cr.P.C read with Section 138 of N.I.Act.
3. Petitioner-accused has sought for quashing of order dated 01.12.2018 (Annexure-B) passed by the trial Court and order dated 20.02.2019 passed by the Revisional Court in this proceedings. An application for review of order of issuance of process against the petitioner (accused) came to be filed by petitioner contending inter alia that complainant without filing the list of witnesses or without stating that he is the only witness or he is not going to examine any other witnesses, the learned trial Judge has proceeded to issue summons at the instance of petitioner and as such, proceedings conducted by the learned trial Judge is erroneous. The said application came to be opposed by the complainant and learned trial judge after having heard the learned advocates has rejected the application on the ground that accused has not cross examined the complainant; the issuance of process was challenged in Crl.R.P.No.52/2018 and it was not allowed and non filing of list of witnesses would not be fatal to summon the witnesses in the proceedings initiated under Section 138 of N.I.Act; lastly, complainant has not made any prayer for examining any particular witness. However, by way of abundant caution the learned Magistrate at paragraph No.11 of order dated 05.12.2018, has directed the complainant to file a memo to the effect that he would not examine any additional witnesses.
4. The above said order was challenged by the petitioner in Crl.R.P.No.963/2018. Having heard the learned advocate appearing for the parties, the Revisional Court has referred to the judgment of this Court in the case of T.M.JAKKANNA @ TIPPANNA MALAPPA JAKKANNAVAR AND ANOTHER VS., M/S.RAJALAXMI TRADERS, reported in ILR 2000 KAR 3881, wherein it came to held that even if the filing of the list were to be mandatory, the order directing the issue of process, before the list of witnesses being filed, is not vitiated and as such, had held omission in furnishing additional list of witnesses is, not a lacuna or illegality and as such, has dismissed the revision petition by affirming the order passed by the trial judge.
5. Proceedings under N.I.Act being quasi criminal in nature, technicality if any has to kneel before substantial justice and even otherwise, the power vested under Magistrate under Section 138 of N.I.Act, read with Section 311 of Cr.P.C empowering the Court to issue summons, at any stage, of the proceedings being available, technicality in question cannot come in the way of process being issued or proceedings being conducted.
I do not find good ground to entertain this petition.
Hence, petition stands rejected.
SD/- JUDGE ag